New York – With the May 16 deadline rapidly approaching for submission of applications to be a full-day provider of services under New York City’s new Universal Pre-Kindergarten (UPK) program, Mayor Bill de Blasio’s office has issued guidelines addressing several issues of importance to the religious school community.

The guidelines were unveiled yesterday in the offices of Agudath Israel of America at a meeting of the Committee of NYC Religious and Independent School Officials, which represents the approximately 900 nonpublic elementary and secondary schools across the city. Rabbi David Zwiebel, Agudath Israel’s executive vice president who chairs the committee, reported that the religious and independent school leaders met with Avi Fink, deputy director of the Mayor’s office of intergovernmental affairs, and with City Councilman Chaim Deutsch, chairman of the Council’s subcommittee on nonpublic schools.

The two government officials have been working with the Mayor’s office and the Department of Education to structure the UPK program to allow for maximum participation by the religious school community within the parameters of “church-state” legal constraints. Addressing a number of critical issues – including, among others, the presence of religious symbols in the UPK classroom, the permissibility of Sunday UPK instruction, preferential hiring practices, and the use of religious texts – the guidelines provide a roadmap as to what is and is not permissible for religious providers.

“While each school will have to decide on its own whether it is able to participate in the program under these guidelines,” commented Rabbi Zwiebel, “there is no question that the Mayor’s office is doing its utmost to forthrightly address the concerns the religious school community has raised. We are forwarding these guidelines to the entire yeshiva community, asking them to consider carefully whether the program would work for them.”

The Agudath Israel leader praised Councilman Deutsch for the leadership role he has played as well. “In trademark fashion, Councilman Deutsch grabbed the bull by the horns and utilized his position as chairman of the City Council’s nonpublic school subcommittee to help bring speedy resolution to some of the vexing questions surrounding religious school UPK programming.”

I would suggest suing. The City seems to be taking the position that the Establishment Clause requires it to impose its own “religion neutrality” rules regarding the teachingof religion on religious organizations whenever they receive government money. I would suggest exactly the opposite position: The Establishment Clause categorically forbids government from imposing (i.e. establishing) rules of any sort on how a religious organization teaches religion. A state is not prohibited from including organizations, nor is it required to subsidize religious instruction. But it can meet its no-subsidizing-religion goals by paying for those portions of the religious organization’s program that align with its goals. When it goes beyond this and attempts to commandeer a religious organization’s entire program and require that the entire program, including those portions paid for by the religious organization’s own money, be taught according to its own view of religion, it is establishing religion plain and simple. And this it cannot do. The Supreme Court has been moving in this direction not only in Hosannah-Tabor, upholding the important idea that running a school is a quintessential tradional religious activity, but in City of Greece, when it held that just because a city legislature calls in a chaplain doesn’t it has in any say in what the chaplain says. Put the two together, and we have an argument that religious schools ought to work just like chaplains. Government can work with them if it wishes. But just because government pays them to speak doesn’t give it any say in the content of the message. All speech is entirely the religious organization’s, never the government’s. Because government has no say in the content, it’s not the government’s speech, rules about what government can say about religion do not apply. That’s the gist of the argument. The second argument runs from cases holding that government cannot interfere in the internal affairs of a religious organization. Parochial education is as quintessentially a part of a religious organization’s internal affairs as, say worship services.

Simply negotiating with the City won’t work here, because the City perceives it owns the speech and thus not only has a right but an obligation to impose rules applicable to when government speaks about religion. You can’t possibly get an acceptable outcome if the City is allowed to accept the idea that these are the rules of the game. There have to be new rules. You have to change the paradigm. And only courts can do that. The City likely won’t even understand the concept until it sees a lawsuit accusing it of establishing religion by imposing rules on religious organizations about how they are allowed to speak about religion as a condition of receiving government funds, and by attempting to aggressively commandeer the organization’s entire program including how it spends its own funds, not just paying for the portions the two have in common on some sort of pro rata basis, it is the City that is establishing religion.

When government teaches, say, the Bible, it is only permitted to teach it as “literature.” Fair enough. But government requires a religious organization to teach the Bible as “literature”, it is imposing scriptural doctrine on that organization. One is not the same as the other.

In short, the real Establishment problem is exactly the opposite of what the City thinks it is. It’s not that children will think that what religious organization says about the Bible represents the State’s views. Nobody will think that. It’s the religion’s school, not the state’s, and the fact that the state finds it in its interests to contribute some money doesn’t change that in the least. The real danger, the one the Establishment Clause exists to protect against, is that children will think that what the State says about the Bible represents the religious organization’s views. That’s the danger. If a state will give a parochial school money only if they teach their children the State’s doctrine about the Bible and not their own, that danger becomes fully realized, and the Establishment Clause becomes violated.

In Brief: The City thinks the constitutional problem is keeping religion out of government It rules are geared to solving that problem. But the real problem is the exact opposite: it is keeping government out of religion. The City’s rules do very badly on that score. They shove government and its government doctrines down religion’s throat.